Legislative remedies may be needed to address the issues
over intellectual property which have arisen out of SCO’s lawsuit
against IBM.
SCO is suing IBM and DaimlerChrysler over use of Linux code,
to which SCO claims it holds rights under its jurisdiction over
Unix. But the issues are not that simple, according to panelists
at the Open Source Business Conference in San Francisco.
Law has not quite caught up to software intellectual property
issues, said US attorney Irwin Gross. "Under existing copyright
laws, software is protected like literature. It’s treated like a
book," Gross said. The law was not made to address the copying of
small snippets of code that go into larger projects, he said.
"I think eventually there will be regulatory responses to this,"
said Gross.
A private market for risk management insurance will arise for
open source, but he added "I think we’re going to see legislative
solutions" as well.
Another panelist, attorney Mark Radcliffe of Gray Care Ware and
Friedenrich, said third-party solutions are needed to provide
indemnities.
Open source provides an area of risk and uncertainty that is
much higher than proprietary software. The definition of copyright
infringement in the US is not even known, Radcliffe added.
"In the open-source arena, you sue someone and if you win you
have an enormous opportunity to collect," said Gross.
An infringing party would have to pay damages based on all sales
made through use of the code. Microsoft has an interest in the SCO
lawsuit because Microsoft, with its business model, cannot compete
against open source, he said.
Lawrence Rosen, an attorney with Rosenlaw & Einschlag and
general counsel with the Open Source Initiative, stressed the
importance of the copyright infringement lawsuit.
This lawsuit affects the fundamental open-source model. The
Supreme Court has never clarified the issue of copyright
infringement, he said.
"There is an implication that there is something unsafe about
open source and you should approach it carefully, be cautious,
don’t use it, use it only with extensive testing," Rosen said.
Paul Krill writes for InfoWorld